'Truth spoken without moderation reverses itself'
This blog is a source for intellectual exploration. It includes a list of alternative resources and a source of free books. The placement of an article does not imply that I agree with it, merely that I found it thought-provoking. There are also poems and book reviews. Texts written by me are labelled. Readers are free to re-post anything they like.

Thursday, March 16, 2017

DUSHYANT DAVE - Judiciary Under Siege as the Executive Flexes its Muscles // KIRAN KUMBHAR: Mob Violence and the Perils of Remaining Meek

Judges whose rulings
have gone against the BJP and its leaders are discovering that their prospects
for advancement have been blocked.

Should the proceedings
of the Supreme Court collegium – which clears appointments to the higher
judiciary – go unchecked? In larger public interest, I feel the process of
appointment must be more open and objective. The collegium’s recent
decisions – non-transparent and secretive – have left the legal world
surprised, if not shocked. The decisions do not appear to be objective or
independent.

Pertinently, these decisions have come after the present Chief
Justice of India, Justice Jagdish Khehar took charge of the apex court on
January 4, 2017, after he presided over a constitution bench which delivered
the judgment in a case relating to the National Judicial Appointments
Commission (NJAC) on October 16, 2015. The court rejected the NJAC Act which
gave politicians and others a say in the appointment of judges.

That the collegium has
to be objective in its decisions has long been emphasised by the Supreme Court.
“The Chief Justice of India, for the formation of his opinion, has to adopt a
course which would enable him to discharge his duty objectively to select the
best available persons as judges of the Supreme Court and the high courts,” a
bench of nine Supreme Court judges said in a judgment delivered on October 6,
1993, in the case of Supreme Court Advocates on Record Association and
others v Union of India.

“Due consideration of
every legitimate expectation in the decision making process is a requirement of
the rule of non-arbitrariness and, therefore, this also is a norm to be
observed by the Chief Justice of India in recommending appointments to the
Supreme Court,” it observed, stressing that “merit” was the “outweighing
consideration” for selecting judges to the apex court. The rationale behind
it, inter alia, was the necessity to “eliminate political influence”; the
“constitutional purpose” was to select “the best from amongst those available”
for appointment as judges of the superior judiciary.

“It is obvious that
only those persons should be considered fit for appointment as judges of the
superior judiciary who combine the attributes essential for making an able,
independent and fearless judge… Legal expertise, ability to handle cases,
proper personal conduct and ethical behaviour, firmness and fearlessness are
obvious essential attributes of a person suitable for appointment as a superior
judge,” it said. But the recent
decisions on the appointment of judges by the collegium leave much to be
desired. The cases of Justice K.M. Joseph, chief justice of the Uttarakhand
high court, and Justice Jayant Patel, the senior most puisne judge of the
Karnataka high court, are classic examples of the destruction of the
“legitimate expectations” of two of the most independent judges in the country.
Both seem to be paying the price for their independent judgments in the president’s rule case in
Uttarakhand and Ishrat Jahan’s case in
Gujarat. These judgments are unpalatable to the Narendra Modi government at the
Centre.

Though Chief Justice
Joseph was earlier slated to be transferred to Andhra Pradesh by a decision of
the previous collegium to which some of the members of the present collegium
are party, it has not been implemented. He deserved to be elevated because the
law seeks to “select the best from amongst those available”. This is not to
comment on the merits of the five recent appointees to the Supreme Court who
are equally outstanding. But there are three more vacancies in the Supreme
Court today. So why was Chief Justice Joseph excluded?

Justice Patel,
appointed on December 3, 2001, is senior to four of the five recent appointees.
For no reason he is not being confirmed as chief justice although the previous
collegium had recommended the transfer of the incumbent chief justice out of
Karnataka to facilitate the appointment of Justice Patel in his place. More painful is the
fact that the collegium has recommended nine judges for appointment as chief
justices in nine high courts. Each of them is junior to Justice Patel by periods
ranging from two months to four and a half years. Why so? Justice Patel deserved
to be considered for the Supreme Court even directly because Gujarat has no
representation on the bench or at least be appointed as the chief justice of an
important high court... Read more:

March 12 was another
sad day for the medical profession and the patient-doctor relationship in
India. Photos and videos of resident doctors being brutally
beaten in a government hospital in Maharashtra’s Dhule have been doing the
rounds on social media. As happens so often, the voices of agitating doctors
will be given temporary sympathetic ears by the public and by authorities, and
then, in a few days, things will go ‘back to normal’. Whether it is violence
against doctors in hospitals or against students on campus, we are a society
that never collectively condemns mob violence – and that has perhaps been the
most important reason we see such attacks happening with increasing frequency
and legitimacy.

The socially
legitimised hooliganism of the Shiv Sena and its so-called sainiks is
a relevant example. I grew up in the Konkan, a traditional power base of the
Shiv Sena, and their unique chest-thumping and bullying are part of my
childhood folklore. Years later, I encountered these yet again, from an
aggressive district leader, during my stint as a medical officer in the region.
At 23 years, I was no less aggressive and was was able to shut him down (it
was, fortunately for me, just a verbal duel). It helped that I was a local and
that he knew that. Otherwise, as happens in most instances, medical officers
are forced to give in to the orders (sugarcoated as requests) of politicians –
admit this friend to the specia ward, sign a month-long medical leave for this
gentleman, do not discharge this saheb, often a criminal
avoiding incarceration.

Dealing with
borderline goonda politicians is a routine for doctors all
over the country, and many have learnt to interact with them in ways that avoid
trouble both to themselves and to their professional integrity. Dealing with
out-and-out goondas, however, is a different matter altogether. It
is a unique Indian situation, taking birth from a combination of a generally
inept police and judicial system, and a culture that considers violence to
be a legitimate form of argument and protest. Dozens of assaults on doctors,
especially resident doctors in government hospitals, occur every year. For
example, early last month, a BJP MP assaulted some doctors in a Karnataka
town. Last year, doctors were beaten up in, among other places, Puri, Patiala, Nanded and Mumbai. The list is endless.

Each of us has a set
of reasons we consider ‘strong enough’ to warrant violence, a threshold that
legitimises violence. My primary appeal here is that it is high time we got rid
of such a worldview. There is no reason whatsoever that justifies mob violence
or physical assault. t has been painful
over the years seeing my fellow doctors experiencing the humiliation of being
beaten up publicly, and enduring physical and mental and physical trauma after.
Often when such assaults happen, we hear news of doctors threatening to strike,
demanding (in fact, begging for) government and public cooperation to prevent
such incidents in future. But the incidents are soon forgotten. No wonder, when
most resident doctors in government hospitals live in constant fear of being
beaten up.

When film director
Sanjay Bhansali went through a similar violent experience last
month, one thus expected doctors to spontaneously empathise with him. I was
disappointed when that did not happen, but in many ways, it was
unsurprising. Like the average Indian citizen, many Indian doctors too –
despite their high level of education – harbour parochial views about religion
and caste, and have their own threshold of what they would
consider ‘legitimate violence’. While they conveniently exclude the
violence that patients and their kin wreak on them, they either openly condone
or stay mum about other forms of desi violence.

For example, when in
February 2016, I, like hundreds of academics around
the world, extended support to the journalists and JNU students who were
bullied and beaten up by mobs, many of my doctor friends cursed me. Besides,
being a Maharashtrian, I also know of many doctors who have no moral qualms
about supporting the mob violence that is typical of the Maharashtra Navnirman
Sena, Sambhaji Brigade and the Shiv Sena. It is this
contradiction of feeling entitled to absolute protection from mob attacks but
not raising a voice when other citizens suffer similar violence, that
India’s medical community urgently needs to discuss and introspect on… read more